ABCMR Memorandum of                                                             AR2002078065
Consideration (cont)

MEMORANDUM OF CONSIDERATION   

	IN THE CASE OF:      

	BOARD DATE:           20 May 2003                   
	DOCKET NUMBER:   AR2002078065

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

| Mr. Carl W. S. Chun | | Director
| Mr. Edmund P. Mercanti | | Analyst

  The following members, a quorum, were present:

| Mr. Melvin H. Meyer | | Chairperson
| Ms. Deborah S. Jacobs | | Member
| Mr. Jose A. Martinez | | Member

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the finding that his depression was not an in line of duty (NLD) condition be corrected to show that it was incurred in line of duty (ILD).  He also requests that his records be corrected to show that he was extended on active duty to be processed under the Disability Evaluation System (DES).

APPLICANT STATES:  Prior to reaching the NLD finding, none of his psychiatrists were interviewed.  He contends that he did, in fact, take his medications while on active duty, contrary to the findings contained in the line of duty investigation.  He was released from active duty without a separation physical examination and without being considered by a medical evaluation board (MEB).  Since his separation, he has unsuccessfully requested an MEB for 4 years.  In addition, he has not been able to be scheduled for an "outprocess physical" because of his status.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned as a second lieutenant, Army Reserve, on 21 July 1977.  He was commissioned as a second lieutenant, Army National Guard, on 1 June 1978.  He was promoted to first lieutenant on 20 July 1980.  On 19 July 1984, he was promoted to captain.  On 1 October 1984, he was honorably discharged from the ARNG and transferred to the USAR Control Group (Reinforcement).  

On 14 December 1984, the applicant was assigned to a USAR unit.  On 17 July 1988, the applicant was ordered to active duty in the Active Guard and Reserve (AGR) program.  On 18 July 1991, he was promoted to major.  On 8 February 1993, he was honorably released from active duty.

On 26 January 1997, the applicant was again ordered to active duty in the AGR program.  

On 29 October 1997, the applicant was examined by an Army Reserve psychiatrist, who diagnosed him as suffering from acute and situational anxiety/depression syndrome precipitated by job stress and the transition from being with his family to being a geographic bachelor.

On 6 November 1997, the applicant's commander requested that he be reassigned.  His commander stated that when he returned from Operation Joint Guard in Bosnia in October 1997, he found the applicant incapacitated by his medical and emotional problems.  His commander opined that the applicant was 

"dangerously close to a nervous breakdown."  That request was denied and the applicant's commander was directed to request an MEB if the applicant's fitness for duty was questionable.

On 18 March 1999, the applicant was seen by a Navy psychiatrist who diagnosed him as suffering from anxiety and depression.  The psychiatrist stated "I have recommended to him to take psychotropic medications and he has been rather hesitant and reluctant to do so as he would like to see his symptoms in remission with psychotherapy alone.  For him, not being able to deal with anxiety and depression and being diagnosed as a person suffering from anxiety and depression is a stigma . . . he has now indicated to me his willingness to take medications as supportive psychotherapy alone is not making that much difference in him.  He has indicated to me that he will take medication if he has to."

On 24 March 1999, the applicant requested an MEB.
 
On 18 May 1999, the applicant again requested an MEB.  In that request he stated that "Since February 1997 I have been having diverse health problems, probably related to the new position I was assigned to by ARPERSCOM.  When we went to Annual Training that year (23 July – 8 August) at Devens, MA, I ended up at the Nashoba Hospital, Ayer, MA, with unexplained heart palpitations and high blood pressure.  My health condition continued to deteriorate rapidly, and I continued to visit the VA Outpatient Clinic out of Newington, CT for the last two years, without sharing much about it with anyone else, due to the embarrassment that this represented to me."  The applicant continued that he was hospitalized on 12 December 1998 with what appeared to be a mild heart attack.  He relates how he continued to receive medical treatment at the VA Outpatient Clinic, and how, when he was referred to the mental health clinic, he had a hard time accepting that he "needed 'that' kind of help."  He adds that "I did feel some comfort in knowing that being [in] a Naval, and not an Army Hospital, would help me to 'hide' my condition from the rest of the 'World.'"

On 21 May 1999, the Navy hospital that was treating the applicant requested an MEB be conducted on him.

On 24 May 1999, the applicant was admitted to a hospital for chronic depression of a 2-year duration, exacerbated by his imminent release from active duty.

On 27 May 1999, the applicant was honorably released from active duty due to his being twice considered for promotion to lieutenant colonel, but not selected.

On 28 May 1999, the applicant was transferred to another hospital.  In that hospitalization summary it was stated that the applicant reported "He was first evaluation in 1998 by mental health.  He could not accept seeing mental health on a regular basis.  However, in Jan 99 he was re-evaluated and started on [a depressant medication]."

On 9 December 1999, the applicant was seen by a Navy psychiatrist.  The applicant reported at that time that he had suffered from a combination of depression and anxiety starting in 1997.  The psychiatrist diagnosed the applicant as suffering from major depression, recurrent, moderate, and panic disorder, without agoraphobia, moderate.

On 5 March 2000, a formal line of duty investigation was conducted on the applicant's hospitalization for chronic depression.  The investigating officer (IO) found that in May and December 1997, and August 1998, the applicant declined the recommendations by his primary care physician to obtain a consultation at a mental health clinic.  In February 1999, the applicant declined antidepressant medication citing concern about his career.  However, he finally agreed to antidepressant medication on 9 March 1999.  Subsequently, a social worker noted that the applicant wasn't taking his medication as prescribed because of concerns about side-effects and stigma.  The IO also noted the applicant's allegations against his command, which included his not being wanted in the unit, possibly due to racism, and a lack of support from his superiors.  The IO concluded that the applicant "did not follow through on treatment recommendations on several occasions, resulting in a prolonged delay in obtaining appropriate treatment and possibly resulting in deterioration in functioning.  Specifically, [the applicant] declined mental health consultation, initially declined appropriate treatment for depression, and then did not take medication as prescribed."  The IO recommended that the applicant's depression be classified as having been incurred NLD, due to own negligence.

On 27 June 2000, the applicant appealed those findings and recommendation.  In that appeal he argued that the IO derived his findings through a telephone call with him and medical documentation.  The applicant claimed that if the IO had interviewed his physicians, he would have reached a finding that his depression was incurred ILD.  In support of his appeal he submitted statements from two psychiatrists who stated that the applicant's "difficulties" were the direct result of his illness and not a conscious and culpable choice to avoid medical treatment.  One of the psychiatrists continues that "it is common for persons who are depressed to fail to grasp the seriousness of their condition and to resist seeking treatment.  Depression changes the way persons think and feel, and sometimes they make choices that do not benefit them.  Nonetheless, these choices are not freely made, but are made under the duress of a serious mental illness.  In the 

instant matter, [the applicant] was quite debilitated in his approach to his condition and could not, because of his condition, fully appreciate the seriousness of his condition or the need for seeking and participating actively in treatment.  Accordingly, I would urge consideration of this disability in evaluating subject officer's culpability for possible misconduct."

The Merck Manual of Diagnosis and Therapy states that heredity is a major predisposing factor in primary mood disorders, such as depression.  Anxiety neurosis is said to be caused by both physiologic and psychological factors, with genetic influences.  Treatment generally consists of psychotherapy aimed at uncovering unconscious conflicts to increase self knowledge; relaxation techniques to diminish hyperactivity; and minor tranquilizers.  The guidelines for drug therapy section of the affective disorder chapter of this manual does not state that the nature of the condition causes patients to discontinue their medications.

Army Regulation 600-8-1, paragraph 41-8, states that the term Existing Prior to Service (EPTS) is added to a medical diagnosis when there is substantial evidence that the disease or injury, or underlying condition, existed before military service, or it happened between periods of active service.  Included in this category are chronic diseases with an incubation period that clearly precludes a finding that it started during tours of authorized training or duty.  If an EPTS condition was aggravated by military service, the finding will be ILD.  If an EPTS condition is not aggravated by military service, the finding will be NLD, not due to own misconduct, EPTS.  Specific findings of natural progress of the 
pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.  

Army Regulation 600-8-1, paragraph 39-5, states that an injury or disease proximately caused by a soldier’s intentional misconduct or willful negligence is considered NLD, due to own misconduct.  

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile 

limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Paragraph 4-19b states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.  

Paragraph 3-4 of this regulation, LD Decisions, states that under the laws governing the Army DES, soldiers who sustain or aggravate physically unfitting disabilities must have incurred or aggravated their disability while the soldier was entitled to basic pay and, the disability must not have resulted from the soldier's intentional misconduct or willful neglect.

Army Regulation 135-175 sets forth the basic authority for the separation of Reserve Component officer personnel.  Chapter 4 of that regulation provides the conditions under which Army Reserve officers may be discharged from their status as Reserves of the Army.  Paragraph 4-4a provides that members of the Army Reserve will be removed from an active status and discharged or transferred to the Retired Reserve (if eligible), within 90 days after the board reports its findings, for nonselection for promotion after the second consideration by a Department of the Army Reserve Components selection board if the officer is in the grade of first lieutenant, captain or major (Title 10, US Code, 3846).

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant's contention that his condition would have been approved as in LOD if his psychiatrists had been interviewed is not accepted by the Board.  His psychiatrists state, essentially, that depression is a condition in which the patient will resist seeking treatment, and which will promote the patients to make choices 

that do not benefit them.  The psychiatrist opines that the choices made by the patient are not freely made, but are made under the duress of a serious mental illness.  

2.  The Board has carefully considered this statement in determining whether the finding that the applicant's hospitalization was NLD was proper.  In this regard, the Board must believe that the statement that the applicant did not freely make choices in regard to his illnesses (presumably not making appointments with the mental health clinic and not taking his medication as prescribed) is an elaboration of the resistance some people who suffer from depression have to treatment.  

3.  While people who suffer from depression may discontinue their medication for a variety of reasons, the Merck Manual does not indicate that there is any medical expectation that patients who suffer from depression will discontinue their medications against medical advice.  

4.  By his own statements, the applicant consciously made the decisions not to accept treatment at the mental health clinic and to discontinue his medications.  His stated reason was he did not like the stigma attached to such treatment.  While he may have underestimated the ramifications of his actions, there is no indication that he didn't know it was not the proper thing to do.

5.  As for the applicant's request to have his records corrected to show that he was retained on active duty and processed under the DES, it appears that the applicant should have been retained on active duty to be considered by an MEB.  This conclusion is based upon the requests submitted by the Navy hospital.  The record is unclear on why he wasn't retained, but it is presumed that the omission was due to the proximity of the request to his mandatory removal date.

6.  The Board must now consider what the results of the MEB and PEB would have been.

7.  In this regard, it would appear that the applicant would have been determined medically disqualified by an MEB and referred to a PEB since his depression and panic attacks were not being controlled.

8.  It would appear from the applicant's overall record that he would have been determined physically unfit to perform his duties.  However, this does not mean that he would have been separated due to physical unfitness.

9.  Since the applicant's depression and panic attacks were determined to have been incurred NLD because the applicant failed to comply with medical advice, the PEB could not have separated him for physical unfitness.  In effect, it would have been said that the applicant's unfitting conditions were only unfitting because of his failure to seek psychiatric treatment and take prescribed medications.  

10.  In addition, the PEB may well have determined that the applicant's unfitting conditions were EPTS.  He reported having started experiencing the symptoms of those conditions the month he entered on active duty.  And both anxiety and depression have hereditary origins.

11.  As such, if the applicant was considered by an MEB and PEB, all indications are that he would have been separated without disability benefits.  Therefore, the error in not referring him to an MEB is, at best, harmless.

12.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___dsj ___  ____jam_  ____mhm____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID | AR2002078065
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 20030520
TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE | YYYYMMDD
DISCHARGE AUTHORITY | AR .  .  .  .  .
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 108.03
2. | 110.03
3. | 122.02
4. | 145.03
5. |
6. |